Friday, 19 June 2015

Breach of Promise or Breach of Contract

Let’s consider a question I was asked recently, and to be honest, it sounded like it was a bit pointless at first blush.

The question was simple, and I’m reminding you I’m not a lawyer, but I was intrigued. The individual simply asked if Mssrs. Cameron, Clegg, Miliband and possibly Brown and/or their parties could be sued for breach of promise over ‘The Vow’ as it was published in the Daily Record in the dying days of the Referendum Campaign.

There was a second aspect to this – if it is possible to do it, did I think it could be crowd-funded?

Honestly, I’ve no idea, was my immediate and rather doubtful response, but it was worth investigating anyway. You see, my recollection of that ‘Vow’ at the time was that it could be read in multiple ways, have a dozen interpretations, and there were really no ‘cast iron guarantees’ built into it. It was, essentially, designed to take the switherer and give them a justification for not doing what they were then believing; that it might be right to vote ‘Yes’.

Interestingly, in spite of what others may say, do or argue every indication I’m discovering is that whatever impact the ‘Vow’ had on the referendum is irrelevant now. Many believe it was the deciding factor. I agree it had a major impact, so I was surprised, none of that is actually relevant. The Union parties seem to think it is though, that caused me to keep digging – what’re they trying to hide?

The starting point is simple; what was actually promised, or less solidly, what would be reasonable to construe was promised. The fact that their names were signed to it, and they de-facto didn’t deny or refute any of it and in actuality did publicly (as the legal’s state) ‘aver and affirm’ if not specifically using those words, implies a promise or contract, in which they could now potentially be in breach.

If they did enter into such a contract, then it’d have been one with the people of Scotland, or even more specifically, those amongst us that altered our vote from ‘Yes’ to ‘No’ based upon that ‘Vow’ ‘Contract’ or ‘Promise’, but it’s most likely that a suit brought by specific individuals lodged and worded something as the ‘people of Scotland’ might suffice.

The second aspect was ‘were they protected by parliamentary privilege’, essentially meaning they can’t be sued. Categorically, the answer here is no. The announcement, undertaking or feel-good fuzzy, call it what you want to, was made by means of a daily tabloid “news”-paper.

So – was there anything specific enough to constitute a contract or promise?

In looking through the Record’s page on the day in question, reading it carefully, helped by someone who used to help actually make laws in the United States (so note the qualifier – it’s not Scot’s advice, but I’m told that although Contract and Promissory law has nuances, it’s overall pretty consistent) what I heard fell out as follows:

1. It stated the three main party leaders had all signed up to the incorporated statements – they’re therefore all on the hook for anything that followed, as long as the specifics could be defined. No specifics, no hook. No ‘No’ vote – it’s all moot anyway.

2. They promised to transfer more powers to Holyrood. That’d have to be in addition to anything that went before. If they give Holyrood the rights over its janitorial budget, and it hadn’t had them before then the promise is fulfilled. It still might be open to argument on ‘reasonable expectation’ grounds, but a near certain win has dropped into rather dubious ‘coin flip’ territory.

3. ‘No one, other than the Scottish Parliament can cut vital public services such as the NHS’ – This is where it might get interesting, because they (Westminster) hold the purse strings, and there was no guarantee they’d not cut funding thereby forcing the Scottish Government to cut services. On the surface it’s a loss here, especially as they already told us we’d be getting more budget cuts, a loss except for the fact that it could be argued it builds on the first point as to right of expectation.

4. The powers were then guaranteed to be ‘extensive’. Still, they could give you the right to pick your nose in addition to those ‘janitorial services’, then they’d argue that was ‘extensive’ – it’s coin flip territory once more, except it again builds upon the umbrella impression of realistic expectation.

5. They agreed that the Scottish Parliament is ‘Permanent’, unless they try to abolish it, there’s no breach of promise there. Even failure to enshrine it constitutionally doesn’t breach that promise – effectively it’s been so declared. Once more it builds on that expectation thing.

6. They promised to improve government in the UK in the years ahead. This might be a ‘gotcha’ with the Alistair Carmichael thing. Arguably, not requiring or requesting resignation shows intent to abandon this pledge. It’s still too early to make a definitive point though. Getting rid of corrupt members could be claimed as showing good intent, avoiding the subject, not so much. Might be a solid argument in a decade, not today. Again it builds on the ‘right of expectation’ thing.

In short, with one exception, this was effectively a media publicity stunt, and that very important exception is the right of expectation.

It was explained to me like this, that if I buy a car, and I’m promised it will be red, three years old, with less than thirty thousand miles and in excellent condition both bodily and mechanically, with the reasonable anticipation of many thousands of happy motoring miles in front of me, then that’s what I should get.

If that car is delivered as described above, but I subsequently discover it’s had a governor fitted, or been ‘wheel clamped’ then the letter of the contract has absolutely been adhered to, however the right of expectation has been thoroughly trashed. The goods are not fit for purpose as one had been led to believe.

This falls under the fact that in law, and Scot’s law too, it isn’t actually necessary to define every detail, but broad expectations are enough. The folk simply need to be competent. Working through the result of the referendum to the landslide in May for the SNP, it’s almost an inescapable argument that many amongst Scotland’s electorate believed one thing, acted in one way (No Vote) and now believe they’ve been sold what would be commonly referred to as ‘a Lemon’, oddly enough, there’s laws against that too!

It would appear that in drafting this vow Cameron, Clegg, Miliband and Brown had fairly good contractual advice, however it would appear they used English legal advice. However the offer was made through the medium of a Scottish Red-Top to the Scots electorate in such a way it could only be accepted in Scotland. Therefore Scots Law and NOT English Law would seem to apply and be the potential initiator of many problems for the “gentlemen” involved.

Effectively, using that massive vote swing as confirmation, it can be argued that a contract was offered, accepted and viewed as breached. In addition, that there was a poll showing a 51/49 vote split in favour of the ‘Yes’ vote with the ‘Yes’ vote steadily gaining momentum until that point at which the ‘Vow’ was made resulting a net six percent reduction in the ‘Yes’ ballot and a final 45/55 poll in favour of ‘No’ also speaks to the efficacy of the offer.

All aspects of this particular case say that, effectively, Scotland’s electorate was sold a wheel-clamped car.

On that, there is without doubt a case.

All that would remain to be answered would be if an unbiased judge heard the case, and on which side of the coin the result would finally land. Only the court itself could determine if it was a winning case.

As to other promises made during this time-frame, they could be viewed as ‘adjunct offers’ especially if not refuted in word or deed by the parties concerned before the vote took place.

One thing is certain, even if the case didn’t make it to court, even a moderately successful attempt at fundraising towards getting it there would prove intensely embarrassing to all the potential respondents.

Should the suit prove successful, and if properly worded, it could force anything from a re-run of the poll itself to utter upheaval in the constitution of the United Kingdom, for in an extreme case it’s entirely possible that a judge could (not would, could) order the establishment of a federalized governmental system.